Apparently, a student editor was assigned to write about Philip Morris USA v. Williams, but thought this far too mundane a topic. Here's the first paragraph:

The history of the Fourteenth Amendment is one of hierarchy and capitalism. In the Amendment's first 139 years, courts have consistently used it to perpetuate dominant notions of class and culture--to maintain deeply rooted inequality and resist meaningful changes in the areas of poverty, race, and gender. While the Amendment's beautiful language and spirit could have been used to ensure equality and meaningful participation in all aspects of a civil community, its words have instead been employed as a tool for just the opposite. Last Term, in Philip Morris USA v. Williams, the Supreme Court used the Fourteenth Amendment to reaffirm and enrich procedural and substantive due process protections for corporations sued for punitive damages. This is the sad reality of a legal system and a culture that have often lacked the courage necessary to promote the practice of daily human life in a manner consistent with our values. But by reconceptualizing the kinds of harms that it addresses, we can transform the Amendment--now itself part of the machinery of cruel myth and illusion--into a tool for equality and justice.

And the last:

One small child dies of starvation every five seconds. That child is one of nearly ten million people who die every year because of hunger. It would be hard for us to imagine watching a child die. In fact, if it were happening in front of us, most of us would do everything in our power to stop it. We must understand and confront the powerful psychological forces that allow us to put the face of this child out of our minds when we interpret constitutional language that purports to bind us to thinking seriously about life and liberty. Yet we live with this world, and we live with this Amendment. And we violate it every five seconds.

Jeez, I would have thought for sure that the author was a Yalie, not a Harvard boy. One thing is for sure: he won't end up practicing law anywhere. No, the academy will undoubtedly welcome him and his gobbledygook with open arms.

Ben P, these Harvard student "Leading Cases" pieces are traditionally rather dry (and very competent, I should add) summaries of important recent cases, with a little criticism or praise to the relevant court thrown in for seasoning. These are not "law review articles," or even "student notes."

It doesn't shock me that there was a student who thought this an appropriate way to write a law review piece. It doesn't even shock me that a Harvard Law student, having chosen this tack, then wrote something so insipid. What appalls me is that the editorial board published it rather than re-assigning it to someone else, and that the note author will likely be judging what else gets published in the Harvard Law Review over the next year.

This reads like the kind of stuff a really glib, upper-class -- i.e., prep schooled -- student would use to b*ll sh*t his way through a law school exam for which he was unprepared. I'd bet money this adolescent graduated from a Grottlesex academy.

I agree with Prof. Bernstein and Ted Frank. Usually these things are fairly competent assessments of important recent cases and often include intelligent criticism, not juvenile rants about capitalism. I'm also surprised that this one got by the editors.

What appalls me is that the editorial board published it rather than re-assigning it to someone else, and that the note author will likely be judging what else gets published in the Harvard Law Review over the next year.

Ted, it sounds as though you're appalled kind of easily. These are just law students. Flashiness is par for the course.

Ben P, these Harvard student "Leading Cases" pieces are traditionally rather dry (and very competent, I should add) summaries of important recent cases, with a little criticism or praise to the relevant court thrown in for seasoning. These are not "law review articles," or even "student notes."

My mistake then.

The article I'm writing for law review is described as a "comment" by our law review staff, as opposed to a case note. It is essentially a commentary article rather than a simple summary of a recent case. However, I did consciously make an effort to avoid using arguments that were beyond the pale because I realize as a student I don't have an enormous amount of credibility as an author.

When Andrew Crespo took over last year, the HLR was transformed from a serious scholarly publication to a cover for some of the most radical left-wing elements in legal academia. Ted Frank's comment is spot on; while there may be a token radical in every HLR class, this nonsense would never have make it through the editors' review process on a normal year. Crespo will not control HLR forever, and hopefully this pseudo-scholarship will end with his tenure.

Also look at the Harvard Law Review's case comment (120 Harv. L. Rev. 1988 (2007)) on the Ninth Circuit case, U.S. v. Hungerford, where the author chewed out the Ninth Circuit for following the law. The first paragraph goes like this (paragraph break added):

Justice and freedom are not words and slogans, but ways of life. It is their essence to exist only where we toil and sweat and live and die each day to practice them. So often we cannot find America's commitment to these values: we cannot find it in our streets and in our schools or in our projects and in our prisons. It is this final locus, the homes we construct for our criminals -- these enclaves of despair and social clubs for our poorest -- that awaits those subjected to our draconian and irrational sentencing policies.

These policies, in all of their ugly inevitability, were yet again faithfully followed by the Ninth Circuit in United States v. Hungerford. By dutifully affirming a lengthy and inappropriate prison sentence, the Hungerford judges passed up a chance to engage in a powerful, symbolic act of civil disobedience -- the kind of direct public repudiation of unwise and unjust laws that has been central to social change throughout our history. The court, like hundreds of others each year, missed an opportunity to play a role in ensuring America's substantive commitment to its formal values in an area likely to be ignored by popular government and unlikely to engender a spontaneous, organic, and effective social movement.

Actually, this was in the May 2007 issue, which means it was probably written by a 2L. Supreme Court case comments are written by beginning 3Ls for the November issue, and students who were 2Ls in May 2007 would be 3Ls by November 2007 (the Philip Morris case comment was 121 Harv. L. Rev. 275).

Observer: I should mention that Harvard Law Review publication standards, even under the most conservative leadership, wouldn't keep this stuff out. Once someone is chosen to write a Supreme Court case comment, the only thing that would prevent its publication is extremely, extremely shoddy writing and legal analysis.

I haven't read the case comment here, but assuming it does an adequate job of characterizing the case and commenting on its significant characteristics, the Harvard Law Review would have let it run under anyone's management, and would have been right to do so.

Also, the President of the Harvard Law Review does not play a very significant role in article selection.

A first basic observation concerns the type of conduct that we choose to punish. For example, tobacco is responsible for far more destruction of American life than marijuana, crack, and powder cocaine combined. n38 While Congress created the much-maligned 100:1 crack-cocaine disparity, the crack-cigarette disparity boasts a ratio of infinite [*280] proportions.

infinite! Be glad it isn't written "literally infinite"
The inner-city poor ensnared by the draconian drug laws that characterize our carceral state do not have shareholders and boards of directors with connections. They do not have armies of lobbyists or public relations specialists studying the latest social psychology research in order to design strategies to manipulate and exploit attitudes and behavior. Nor do they have Supreme Court Justices meticulously using their skills of legal reasoning to craft extratextual arguments that grant them relief.

They do, however, have crack cocaine.

This dissonance between harmful social consequences and the types of conduct we choose to punish is part of a larger phenomenon of a society that defines deviant behavior in an irrational manner, often influenced by racial, socioeconomic, and psychological factors that have nothing to do with the stated goals of criminal law or punishment. n39

I went to NYU Law. NYU bows to no school its its elevation of liberal gibberish. Now I must find on the Law Review a transgender radical lesbian, Islamo-fascist voyeur of mixed racial hertiage to write about this leading case note to show how it advocates an insufficiently expansive power of the state to free us all from social constraints.

But I happen to agree that the 14th amendment, written with the protection of freed slaves after the Civil War, was hijacked by the late 19th and early 20th century Courts into protecting vested property and economic interests against reasonable state regulation and interference. And, if I'm not mistaken, professors of Mr. Bernstein's ideology heartily approve of this hijacking and wish it to be resumed.

He wasn't being hyperbolic by using the word "infinite." That is literally correct. The ratio of a number greater than zero (the criminal punishment for possession/sales of crack cocaine) to zero (the criminal punishment for tobacco possession/sales) is infinite.

Judging by the quotes anonthu provided, the author looks like a libertarian to me.

Yes it does (re: drug policy), but most of it is a rant about how powerful corporate interests control the government (and specifically the court) to keep the downtrodden, well, downtrodden...

The second to last paragraph:

The Fourteenth Amendment currently offers no protection to the 38,000 American citizens who die each year just by breathing our air. It should. The money in a corporate bank account is a constitutionally protected interest. If that money is threatened, the great forces of justice and courts and power and violence will come to its defense. Yet the Justices do not rush to the defense of the 400 million children who are chronically hungry. n54 What has happened to their lives and their liberty? Why not protect the poor in third world countries? Why not have an amendment that said to them: your limbs will not be wearied, your children will not be malnourished, your homes will not be pillaged, polluted, and destroyed, and your people will not be murdered so that I may enjoy a jewel. Why not say to our own workers: you have a right to a living wage because without that, forces beyond your control are depriving you of life and liberty. It is indeed a strange world in which a lifeless wealth aggregation can have more protection than millions of starving children. It was so when corporations received more justice than blacks who were lynched and women who could not vote. Still it is so. We must develop a set of constitutional doctrines that gives enforceable rights to these groups and to these communities - for they experience constitutional harms that we have [*285] too long ignored at the hands of collective choices that we have too long refused to embrace as our own. n55

God this guy is a wimp. I guess this individual took an advanced seminar in "white guilt" at Harvard. With regards to the starving children around the world -- my response is the same as the venerable Homer Simpson "They are with God now."

Big deal. There are 25 or so of these published every November in the HLR. One or two is going to go off the deep end every so often. Realize that these comments are exercises in self-indulgence that, with rare exception, have literally zero impact on anything, except to allow certain groups -- on the left or the right -- to renew their respective beef with Harvard Law School (too corporate/too socialist). This author will no doubt go on to clerk for a very liberal judge and then enter academia -- where his/her thoughts will again have literally zero impact on anything -- or join a liberal advocacy group, where arguments unmoored from actual law will not get very far in an actual court.

Sasha is correct that, barring extremely poor writing or analysis, the editors will not stop a student piece from being published, regardless of how misguided it may be. Which, provided that policy is applied evenly, is how it should be.

I wonder what the author thought of the fact that Justice Scalia, who the author presumably believes is in regular communication with Satan and/or Zombie Hitler, is one of the leading critics of finding a due process right against "excessive" punitive damages? Or maybe the author didn't actually bother to read and research punitive damages cases before he launched into this juvenile tirade?

If Congress drafted the amendment to stop Sudanese children from starving to death, why didn't they pass enabling legislation to implement it? They must have been too busy impeaching Andrew Johnson for lying about sex.

Virginian:

The ratio of a number greater than zero (the criminal punishment for possession/sales of crack cocaine) to zero (the criminal punishment for tobacco possession/sales) is infinite.

Of course there would be a difference in the punishment between possession/sales of crack and possession/sales of tobacco. Possession/sales of tobacco is not illegal except to people under a certain age.

To compare apples to apples perhaps the comparison of the punishment of possession/sales of crack cocaine to the punishment of possession/sales of powder cocaine would be more reasonable and relevant.

Why not protect the poor in third world countries? Why not have an amendment that said to them: your limbs will not be wearied, your children will not be malnourished, your homes will not be pillaged, polluted, and destroyed, and your people will not be murdered so that I may enjoy a jewel.

Why not have an amendment that said to them: all the water you drink for the rest of your life will taste like chocolate milk, no matter what you eat or how little you exercise, you will not get fat, and if you fall off a cliff, you will simply sprout wings and fly away? It is indeed a strange world in which a lifeless wealth aggregation can have more protection than someone who is falling off a cliff to their death.

I'm with this guy, he's got some good ideas for a Constitutional Amendment.

While the [14th] Amendment's beautiful language and spirit could have been used to ensure equality and meaningful participation in all aspects of a civil community, its words have instead been employed as a tool for just the opposite.

Apparently, the author is unaware that the language and spirit of the 14th Amendment was designed NOT to give African-Americans the vote. A color-blind version was first proposed, but it was too radical to get through Congress b/c it might have given African-Americans the right to vote, so they proposed the watered-down version we got.

2. Also, the first sentence attacks capitalism, but in capitalist countries life expectancies are higher. Compare African socialist and Asian capitalist countries that were at a similar state of development in the 1960s.

Or North with South Korea
Or the former East with West Germany
Or Taiwan and Hong Kong with a pre-capitalist mainland China.

If the author really cared about poverty and death (and understood what he was writing about), he would be advicating capitalism, not attacking it.

The Fourteenth Amendment currently offers no protection to the 38,000 American citizens who die each year just by breathing our air. It should. . . . Yet the Justices do not rush to the defense of the 400 million children who are chronically hungry. n54 What has happened to their lives and their liberty?

I wonder if the author would apply such reasoning to unborn children and abortion?

"While the [14th] Amendment's beautiful language and spirit could have been used to ensure equality and meaningful participation in all aspects of a civil community, its words have instead been employed as a tool for just the opposite."

[Prof. Lindgren:] Apparently, the author is unaware that the language and spirit of the 14th Amendment was designed NOT to give African-Americans the vote. A color-blind version was first proposed, but it was too radical to get through Congress b/c it might have given African-Americans the right to vote, so they proposed the watered-down version we got.

If we assume the student used his words with technical precision (a very charitable assumption in light of the article generally), he actually phrased it correctly. The usual way of explaining the 14th A is that it protected civil rights, but not political rights (as you note). The distinction at the time was that civil rights allowed the person to engage in ordinary commercial and public transactions (as opposed to political functions such as voting or private functions such as schooling).

If the author really cared about poverty and death (and understood what he was writing about), he would be advicating capitalism, not attacking it.

First, I am not sure if the first sentence is "attacking" capitalism or not. Second, I am too lazy to actually read the article to find out.

However, I would say that their are critiques of "capitalism," whatever one means by that term, that fall short of advocating its abolishment.

I think modifications of the "system" are reasonable to advocate for. I think most rational individuals would agree that their is a place for markets and a place for private property.

Is Western Europe capitalist? I suppose that depends on how narrow or broad your definition of that term is. I would say it is, under my definition. I would also say it is more socialist than the United States.

Compare life expectancy and infant mortality in Western Europe and the United States. It is not clear that what we need is more capitalism, narrowly defined. That is not the same thing as saying that we should end capitalism, broadly defined.

"I went to NYU Law. NYU bows to no school its its elevation of liberal gibberish. Now I must find on the Law Review a transgender radical lesbian, Islamo-fascist voyeur of mixed racial hertiage to write about this leading case note to show how it advocates an insufficiently expansive power of the state to free us all from social constraints.

No. It sounds like he is celebrating diversity. If he really was racist he wouldn't put himself in a position where he was only 5 minutes from locating a "transgender radical lesbian, Islamo-fascist voyeur of mixed racial hertiage" whom he knew intimately enough to catalog their views on the "expansive power of the state".

However in Britain advocating equal rights for such a person can get you arrested:

If you are a black, vegetarian, Muslim, asylum-seeking, one-legged lesbian lorry driver, I want the same rights as you.

Why not have an amendment that said to them: all the water you drink for the rest of your life will taste like chocolate milk, no matter what you eat or how little you exercise, you will not get fat, and if you fall off a cliff, you will simply sprout wings and fly away?

Apparently, the author is unaware that the language and spirit of the 14th Amendment was designed NOT to give African-Americans the vote. A color-blind version was first proposed, but it was too radical to get through Congress b/c it might have given African-Americans the right to vote, so they proposed the watered-down version we got.

This is a preposterous claim. Have you even read the text of the Fourteenth Amendment?

Section. 1. All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. . . .

Section. 2. Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.

I can't imagine what you mean when you say the amendment wasn't intended to give African-Americans the right to vote. It creates a right to vote for all male citizens at least 21 years of age, regardless of race, and then it establishes a penalty for states that deny that right to any of those eligible.

Can you explain this claim? Did you mean the right to vote in STATE elections?

Really. you should read the text more carefully and the history of the 14th amendment before making such claims, especially so extravagantly stated.

Nowhere does the text guarantee the right to vote. Indeed, it explictly contemplates that some citizens might be denied that right.

The original version of 14th amendment was designed to give suffrage. When the watered down version was substituted that would not guarantee suffrage, many of those who favored African-American suffrage opposed it as a "total surrender" and "disgraceful to the nation." Some, like Wendell Phillips, opposed the 14th amendment b/c of its failure to provide suffrage.

The simple answer is that the 15th Amendment was designed to provide suffrage, b/c the 14th amendment failed to do so.

The ins and outs of this are described in detail in Andrew Kull's prize-winning history, The Color-Blind Constitution (Harvard Press, 1992), pp. 53-87.

One of the crucial moves was deleting the 14th amendment's suffrage provision, a move that Stevens explained:

"In the course of last week the members from New York, from Illinois and from Indiana, held, each separately, a caucus to consider whether equality of suffrage, present or prospective, ought to form a part of the Republican program for the coming canvass. They were afraid, so some of them told me, that . . . it would be used against them as an electioneering handle, and some of them—hang their cowardice!—might lose their elections. By inconsiderable majorities each of these caucuses decided that Negro suffrage, in any shape, ought to be excluded from the platform; and they communicated these decisions to us. Our committee hadn't backbone enough to maintain its ground. Yesterday the vote on your plan was reconsidered, your amendment was laid on the table, and in the course of the next three hours we contrived to patch together—well, what you've read this morning."

So the radical Republicans backed down and decided to revise the 14th amendment they had proposed so it would not immediately convey the right to vote.